A rent determination lawsuit is a type of lawsuit seeking to increase or decrease the rental price and can be filed by the lessor and the tenant. When making a rental agreement, the parties can freely determine the rental fee. However, the parties may request a change in the rental fee in a new rental period. According to Article 344 of the Turkish Code of Obligations: Agreements of the parties regarding the rental fee to be applied in re-rental periods are valid, provided that it does not exceed the rate of change in the consumer price index according to the twelve-month averages in the previous rental year. This rule also applies to rental agreements longer than one year.
If the parties have not made an agreement on this issue, the rental fee is determined by the judge on an equitable basis, taking into account the condition of the leased property, provided that it does not exceed the rate of change in the consumer price index of the previous rental year according to the twelve-month averages. Regardless of whether an agreement has been made by the parties on this issue, in lease agreements with a duration of more than five years or renewed after five years, and at the end of each five years thereafter, the rental fee to be applied in the new lease year is determined by the judge, the rate of change in the consumer price index according to the twelve-month averages, the condition of the leased property and It is determined in an equitable manner, taking into account comparable rental prices. "The rental fee determined in this way in the rental year after every five years may be changed according to the principles in the previous paragraphs.
According to this article of law, if the parties cannot agree on the rent for the new lease period, they can file a rent determination lawsuit and request the court to determine the rent.
If the rental agreement is made for a period of less than 5 years and the parties have not agreed on the rental fee, the rental fee to be determined in the new period is determined fairly by the judge, taking into account the condition of the leased property, provided that it does not exceed the rate of change in the consumer price index of the previous rental year according to the twelve-month averages.
If the rental agreement is made for a period of more than 5 years and even if there is no agreement between the parties, the rental fee is determined by taking into account factors such as the condition of the leased property, comparable rental prices, and market rate. In this case, it is recommended to investigate the prices of other rental apartments with the same conditions when determining the rental price.
What are the Conditions of a Rent Determination Case?
Rent determination case is a type of case in which two basic conditions must be met and the following are required:
1. There must be a lease agreement between the parties. This agreement can be written or oral and there is no obligation to be in writing.
2. The parties must have a legal interest by filing the lawsuit. This means, for example, if the parties have already determined a rental fee in accordance with the legal limits and the law for the new rental period, then there will be no legal benefit in filing a lawsuit to determine the rental fee.
In order to file a lawsuit to determine the rental price, these two conditions must be present together; otherwise the case will be rejected.
There is no time limit in our laws for filing a rent determination lawsuit. However, according to Article 345 of the Turkish Code of Obligations:
A lawsuit regarding the determination of the rental price can be filed at any time.
However, if this lawsuit is filed at least thirty days before the beginning of the new period or until the end of the following new rental period, provided that the lessor has given written notice to the tenant that the rental fee will be increased within this period, the rental fee to be determined by the court, This binds the tenant from the beginning of the new lease period.
"If there is a provision in the contract stating that the rental fee will be increased in the new rental period, the rental fee determined by the court in the lawsuit filed until the end of the new rental period will be valid from the beginning of this new period."
According to this article, a lawsuit for determination of the rental fee can be filed at any time. However, if the parties want the new rent to be determined by the court to be valid from the beginning of the new lease period, they must file the lawsuit at least 30 days before the new lease period or notify the other party in writing of this matter at least 30 days in advance. When these conditions are met, the new rent determined by the judge will be valid from the beginning of the new rental period.
If the rental agreement is made for a period of more than 5 years and even if there is no agreement between the parties, the rental fee will be determined by taking into account factors such as the condition of the leased property, comparable rental prices, and market rate. In this case, it is recommended to investigate the prices of other rental apartments with the same conditions when determining the rental price.
There is no obligation to send a warning before filing a rent determination lawsuit, because such a requirement is not stipulated in the law. However, if any of the parties will make an increase in the rental fee 30 days in advance to determine the rental fee, in this case, the new rental fee determined as a result of the lawsuit filed will be valid from the beginning of the new rental period. Therefore, although it is not mandatory to give a warning to file a rent determination lawsuit, if the new rent is to be valid in the new rental period, a warning must be sent 30 days in advance.
According to this article, if an extraordinary situation that the parties could not and cannot foresee at the beginning arises for reasons not caused by the debtor, and the request for performance under these conditions is against the rules of honesty, the debtor may request the court to adapt the contract to the new conditions.
The relevant article regulates the request for rent adaptation due to extreme difficulty of performance. This demand and legal regulation is based on the concept of honesty contained in Article 2 of the Turkish Civil Code.
In What Cases Can A Rent Adjustment Lawsuit Be Filed?
In order to file a lease adaptation lawsuit, certain conditions must be met. It is of great importance to ensure these conditions and it is not enough to file a lawsuit only when the balance between acts is disrupted.
In order for a lease adaptation lawsuit to be filed, the following conditions must be met:
1. Extraordinary situations that the parties cannot foresee and cannot foresee: These unforeseen situations may be situations that create serious negativities and uncertainties throughout the country, such as a sudden increase in exchange rates, economic crises throughout the country, war or pandemic, or political decisions that affect the value of the currency.
2. The extraordinary situation does not originate from the debtor: An extraordinary situation must have occurred beyond the debtor's control. For example, a situation created by the debtor does not constitute a proper basis for a lease adjustment lawsuit. For example, the debtor's bankruptcy and therefore difficulty in paying is a situation caused by the debtor.
3. The extraordinary situation causes a significant change to the detriment of the debtor: The existence of an extraordinary situation is not sufficient for rent adaptation. This situation must have a significant negative impact on the debtor and this must be determined by a subjective evaluation. For example, economic negativities may occur throughout the country due to a pandemic, but if the debtor is not affected by this negativism, the rent adaptation request is not justified.
Additionally, it is not possible to file a lease adaptation lawsuit for lease agreements that have not yet completed one year.
Lease Adaptation Case and Conditions
Even though we have a legal system where freedom of contract is accepted, situations called "collapse of the transaction basis" may require changes in contracts. Otherwise, it may be contrary to the rules of honesty and the principle of justice.
When Is the Determined Monthly Rental Fee Valid?
Regarding this issue, Article 345 of the Turkish Code of Obligations states the following: "Provided that the case is filed on a date at least thirty days before the beginning of the new period or written notice has been given by the lessor to the tenant that the rental price will be increased within this period, "If it is opened until the end of the new lease period, the rent determined by the court will bind the tenant from the beginning of this new lease period." According to this provision, if the lawsuit determining when the rental fee will be valid is either filed thirty days before the beginning of the new rental period or if a written notice is given to the tenant that the rental fee will be increased, the new rental fee determined by the court will be valid from the beginning of the new rental period.
Fee for Rent Determination Case and Attorney Fee of the Other Party
The fee to be paid in rent determination cases is calculated based on the difference between the requested rent and the current rent. For example, if the current rental fee is 10,000 TL and the requested rental fee is 20,000 TL, the value to be taken as the basis for the fee will be 20,000 - 10,000 = 10,000 TL.
The opposing party's attorney fee is determined according to Article 9 of the Attorney Minimum Fee Tariff. According to this article, in eviction cases, the amount of one year's rent, and in cases of rent determination and alimony, the entire amount to be calculated in accordance with the third part of this Tariff, based on the difference in rent or alimony determined in accordance with the one year amount of the alimony, will be judged as attorney's fee. These amounts cannot be less than the fee determined by the court where the case is heard.
What are the Conditions of the Lease Adjustment Case?
Lease adaptation lawsuit is a legal process that can be filed by tenants and lessors. The characteristics of this case, the circumstances in which it can be initiated, and its differences from similar cases are among the topics that are frequently wondered about. In this article, we will cover the basics you need to know about a lease adaptation case.
What is a Lease Adjustment Case?
According to Turkish Law, the principle of freedom of contract ensures that both parties can make contracts under any conditions they want, as long as they are not against the law and moral rules. This principle also applies to rental agreements. Tenants and lessors may freely agree on fees and other conditions and determine the basic conditions in their lease agreements. However, in cases where certain matters are missing or unclear, the relevant provisions of the Code of Obligations apply. The parties are obliged to comply with these agreements within their own freedom of will. However, after the lease agreement is established, unexpected and extraordinary circumstances may arise and the initially stipulated terms may change significantly to the detriment of one of the parties. In this case, a lease adaptation lawsuit may be in question. Article 138 of the Turkish Code of Obligations regulates the procedure to be followed in such cases.
Under normal circumstances, it is not possible to make unilateral changes to lease agreements. However, it may be possible to change contract elements such as the rent price by court decision through a rent adaptation lawsuit. This allows the contract to be adapted to changing conditions.
Lease Adaptation Case and Conditions
In order to file a lease adaptation lawsuit, certain conditions must be met. These conditions are:
1. Occurrence of an extraordinary situation that is unpredictable and impossible to foresee: The first condition for filing a rent adaptation lawsuit is that an extraordinary situation that the parties could not foresee and cannot foresee when making the contract has occurred. These situations may be such as sudden rise in exchange rates, economic crises, major negativities and uncertainties across the country such as war or pandemic, and political decisions affecting the value of the currency.
2. The extraordinary situation is not caused by the debtor: The second condition is that the extraordinary situation is not created by the debtor. For example, if the debtor has difficulty paying due to bankruptcy, this is a situation caused by the debtor and does not constitute a suitable reason for a rent adjustment lawsuit.
3. The extraordinary situation causes the performance request to change in a way that violates the rules of honesty: The third condition is that the extraordinary situation causes the performance request to change in a way that violates the rules of honesty. In other words, the existence of an extraordinary situation is not accepted as a reason in itself. This situation must be negatively affected by the debtor and this effect must be determined through a subjective evaluation.
Additionally, it is not possible to file a lease adaptation lawsuit for lease agreements that have not yet completed one year.
Lease Adaptation Case and Unforeseen Situations
The concept of unpredictability may include situations that are not valid for every event and are not objective. Each lease relationship should be evaluated separately according to factors such as the situations of the parties, the impact of the extraordinary situation and whether the performance is contrary to the rules of honesty.
To give general examples, a pandemic affecting the entire country, a similar war situation, infrastructure problems that greatly affect real estate, extraordinary changes in exchange rates, economic crisis, devaluation, etc. Large and widespread situations such as: However, the existence of one of these situations alone is not a sufficient reason to file a rent adaptation lawsuit. The situations of the parties should also be subject to a subjective evaluation.
For example, while the Supreme Court accepted that the conditions for an adaptation case were met due to the economic crisis, it also ruled that the adaptation conditions were not met on the grounds that the parties, who are traders, should take economic crises into consideration in advance and act like honest traders. Additionally, if there is no valid contract between the parties or if the parties have waived their right to adaptation during the contract, there are cases where the conditions for filing an adaptation lawsuit are not met.
Differences in Lease Adjustment and Rent Determination Cases
Rent determination cases are a type of case that can be filed at any time for residential and roofed workplace rents in accordance with Article 345 of the Turkish Code of Obligations. The purpose of this lawsuit, which can be filed by the tenant or the lessor, is to redetermine the rental price. This lawsuit, which is also known as a rent increase lawsuit in practice, can also be filed with the tenant's request to reduce the rent.
The differences between the rent adjustment case and the rent determination case are as follows:
1. A rent determination lawsuit is only possible for residential and roofed workplace rents. The lease adaptation case is valid for all kinds of lease relationships.
2. There is no uncertainty or excess requirement for a lease adaptation case. However, in rent determination cases, the rent increase rate specified in the contract must be uncertain or exceed the upper limits.
3. While uncertainty or an upper limit must be exceeded in order to file a rent determination lawsuit, there is no time limit in rent adjustment cases.
4. In lease adaptation cases, extreme difficulty in performance must be experienced due to an extraordinary situation. In rent determination cases, such a condition is not required. In rent determination cases, the court determines the new rent price using criteria such as the CPI rate and the precedent rental price, while in adaptation cases, the court makes an evaluation according to the conditions of the extraordinary situation that has arisen.